declaration of restrictive and protective …

ORGAN MESA RANCH PHASE 2 COVENANTS PAGE 1 OF 34

ANNEXATION, AMENDMENT AND DECLARATION

OF

RESTRICTIVE AND PROTECTIVE COVENANTS, CONDITIONS, AND ESTABLISHMENT OF

ARCHITECTURAL CONTROL AND LOT AND BUILDING GUIDELINES

For

ORGAN MESA RANCH

PHASE 2

EXCLUDING TRACT “A”, 7988 SOLEDAD CANYON COURT

DOÑA ANA COUNTY, NEW MEXICO

AND ANY ANNEXATIONS THERETO

ARTICLE A – DECLARATION:

The undersigned owners of the following-described real estate located in Doña Ana County, New Mexico

(hereinafter called “Grantor” or “Declarant(s)”) do hereby declare the creation and existence of restrictive and -

protective covenants (hereinafter called “Covenants”), as hereinafter set forth. This instrument is hereby annexed

into those covenants for Phase 2, excluding tract “A”, 7988 Soledad Canyon Court, recorded in the office of the

County Clerk of Dona Ana County on the ____ day of __________, 2005, and hereby comprises annexed and

amended covenants bordering all lots within Phase 2 inclusive. The Declarants also wish to establish an

independent Architectural Control Committee with Design Guidelines for the administration and enforcement of

certain provisions of these Covenants.

The Declarants are: Organ Mesa Development, LLC. a

Limited Liability Corporation organized and existing under the laws of the

State of New Mexico

2511 N. Telshor Drive,

Las Cruces, New Mexico 88011

NOW THEREFORE, Grantor hereby declares that all property within the Subdivision excluding tract “A” is and shall

hereafter be held, conveyed, encumbered, leased, developed, improved, and used subject to the following

covenants, conditions, restrictions, and equitable servitudes imposed in furtherance of a plan for the subdivision,

improvement, and sale of lots within the Subdivision, and to enhance and maintain the value, desirability, and

attractiveness of such property. The restrictions set forth herein shall run with the real property included within the


Subdivision and shall be binding upon all persons having or acquiring any interest in such real property or any part

thereof and shall inure to the benefit of every portion of such real property and any interest therein and shall further

inure to the benefit of and be binding upon Grantor, its successors in interest, and any person whose interest in

property within the Subdivision derives from Grantor’s interest.

ARTICLE B – THE PREMESIS (hereinafter called “Property” or “Subdivision”):

The Property so named herein and burdened by the Covenants is as follows:

Organ Mesa Ranch, Doña Ana County, New Mexico; which, by the act of Subdivision, is now known as

Phase 2 of the Organ Mesa Ranch Subdivision, Doña Ana County, New Mexico excluding tract “A”, 7988

Soledad Canyon Court. (hereinafter called the “Property” and/or the “Subdivision”) as the same is shown

and designated on the Plat thereof, filed in the office of the County clerk of Doña Ana County, New Mexico

on the _____ day of ____________ ____, 2005 in Plat Book ________, Page ________. Any further

replat, re-subdivision of change in name or address shall not alter the burden of these Covenants on the

Property.

ARTICLE C – BINDING EFFECT, TERM AND FUTURE ANNEXATIONS

All the restrictions and covenants set forth herein shall be binding upon the owners and their successors and

assigns and all persons claiming by, through or under them ownership in the Property, for a period extending to

December 31, 2030, at which time said covenants and restrictions shall be automatically extended for successive

period of ten (10) years, unless revoked or amended by an instrument in writing, executed and acknowledged by

the owners of not less than 66.67% of the lots in the Subdivision and any annexations thereto, which instruments

shall be recorded in the office of the County Clerk of Doña Ana County, New Mexico, within ninety (90) days prior

to the expiration of the initial term hereof or any ten-year extension; provided, however, that during the initial period

the owners of not less than 66.67% of the lots in the Subdivision may at any time and from time to time release all

of the lots hereby restricted from any one or more or all of the restrictions and covenants, and may release any lot

or lots from any of the restrictions and covenants or may modify, change or amend restrictions and covenants or

may modify, change or amend these restrictions by executing and acknowledging an appropriate agreement in

writing (amended declaration) for such purpose and filing the same for record in the office or the County Clerk of

Doña Ana County, New Mexico.

The foregoing provision does not apply to the Declarant, their heirs or assigns, who may file an amended

declaration of these Covenants at any time, so long as they own an equitable or legal ownership in any of the

Property. The Declarants may, from time to time, annex other portions, lots, phases or lands of Organ Mesa Ranch

landholdings into these Covenants by execution and recordation of an instrument declaring same. If so provided,

the annexed Property shall have the same force and effect as the Property declared under this instrument,

including any amendments thereto.


ARTICLE D – DEFINITIONS

Unless the context otherwise specifies or requires, the following words and phrases when used in this Declaration

shall have the meanings hereinafter specified.

D.1.1 “Architectural Review Committee” shall mean the committee created pursuant to these Covenants.

D.1.2 “Architectural Committee Rules” shall mean any rules or guidelines adopted by the Architectural

Review Committee pursuant to these Covenants.

D.1.3 “Assessments” shall mean any assessments that may be levied upon any of the lots within the

Subdivision as provided in these Covenants.

D.1.4 “Courtyard or Backyard Walls” shall mean those permitted enclosures, including fences, gates, retaining

and extended structural walls, which are installed by the Owner in conjunction with plans and specifications

approved by the Committee on a case by case application basis. These enclosures are differentiated from

Perimeter Walls in that they may not follow lot or easement lines and are restricted as to the amount and

nature of the enclosure.

D.1.5 “Beneficiary” shall mean a mortgagee under a mortgage or a beneficiary under a deed of trust, as the

case may be, and/or the assignees of such mortgagee, beneficiary, or holder.

D.1.6 “Declaration” shall mean this instrument as it may be amended from time-to-time.

D.1.7 “Equestrian Lot” shall mean those specific lots and easements allowing horse and/or large-animal

facilities as designated by the Declarant and consistent with the Subdivision Master Plan approved by

Doña Ana County.

D.1.8 “Grantor” shall mean Organ Mesa Development, LLC, a New Mexico Limited Liability Corporation.

D.1.9 “Improvement” shall mean any structures and appurtenances thereof of every type and kind, including,

but not limited to, the following: buildings, outbuildings, garages, carports, driveways, parking areas,

perimeter walls, fences, screening walls, retaining walls, stacked rock soil retention systems, stairs, decks,

windbreaks, poles, signs, exterior air conditioning or heating units, utility meters, water softener fixtures or

equipment, dog houses, satellite dishes, solar panels, and play equipment (e.g., swings, slides,


playhouses, tree houses, jungle gyms, and basketball backboards), but excluding landscaping.

D.1.10 “Lot” shall mean that area, parcel, piece, or division of real property within the Subdivision intended for

development with a single-family dwelling which is specifically detailed or shown on the Subdivision plat

map and designated by number.

D.1.11 “Mortgage” shall mean any mortgage or other conveyance of a Lot to secure the performance of an

obligation, which conveyance will become void and be reconveyed upon the completion of such

performance, and which has been recorded.

D.1.12 “Owner” shall mean any person who owns a Lot within the Subdivision as shown in the deed records

of Doña Ana County, New Mexico, but does not include a mortgagee under a Mortgage unless such

mortgagee has acquired title to a Lot as a result of foreclosure or a deed in lieu of foreclosure. Owner

shall also include a person who acquires any interest in a Lot under a real estate contract, and a

person who retains any interest in a Lot that is the subject of a real estate contract. Where a provision

of this Declaration requires the vote or consent of the Owner of a Lot, or imposes an obligation on the

Owner of a Lot, all persons who hold record title to such Lot shall, in the aggregate, be considered the

“Owner” of such Lot.

D.1.13 “Pad Elevation” shall mean the elevation of the designated area on each Lot as shown on the

approved “Grading and Drainage Plan@ for the Subdivision on file with the City of Las Cruces and

Doña Ana County.

D.1.14 “Perimeter Wall” shall mean the wall, fencing, gates, landscaping or any portion or combination

thereof encompassing and subscribing any contiguous development portion or phase of the

Subdivision as directed or erected by the Declarant. Said Wall shall include any entryway returns,

offsets, footings, drainage provisions and portions of the Subdivision improvements supporting same.

D.1.15 “Person” shall mean a natural individual or any other entity with the legal right to hold title to real

property in the State of New Mexico.

D.1.16 “Record,” “recorded,” and “recordation” shall mean, with respect to any document, the

recordation of such document in the office of the County Clerk, Doña Ana County, New Mexico.

D.1.17 “Single-Family Dwelling” means a permanent house with foundation and related walls, drives,

parking areas and structures (such as attached guest or caretaker quarters) designed and utilized as

a residence for owner-occupied living and does not include any type of multi-family dwelling


(including, for example, a duplex, triplex, quadplex, or apartment house), boarding or lodging house,

sanitarium, hospital, day care facility, half-way house, extended care facility, trailer, mobile home or

manufactured home, tent, teepee, yurt, shack, garage, barn, dome, A-frame structure, pyramid, or

Quonset hut. Nothing contained in the Declaration shall be construed to prevent an Owner from

leasing or renting the single-family dwelling located on his, her, or its Lot under the Uniform Owner-

Resident Relations Act.

D.1.18 “Subdivision” shall mean all that certain real property identified and described in this Declaration, as

the same is now and as may from time-to-time be developed and improved, located in Doña Ana

County, State of New Mexico, and as shown on the Subdivision plat map, together with any

amendments, replat or annexations thereto, so made pursuant to any independent declaration.

D.1.19 “Subdivision Map” shall mean the plat referred to in this Declaration; as such plat may be amended

from time-to-time.

ARTICLE E – PERMITTED AND PROHIBITED LAND USE

E.1.1. Except as otherwise expressly set forth herein, all Lots are hereby designated for use solely as single-

family lots. Lots shall be used and improved exclusively for residential purposes in conformance with

this Declaration. Only single-family dwellings and Improvements commonly constructed in connection

with single-family dwellings may be constructed on Lots. All Lots and any Improvements thereon shall

be held, used, and enjoyed subject to the limitations and restrictions set forth in this Declaration.

E.1.2. No more than one single-family dwelling shall be erected or maintained on any one Lot, together with

no more than two (2) detached outbuildings (including any detached garages). If allowed by applicable

zoning, one outbuilding per Lot may contain a dwelling for temporary guests, caregivers and

caretakers, provided, however, that such guest quarters shall not be rented separately from the

primary residence. As used in this Declaration, No dwellings other than single-family dwellings shall

be erected, placed, permitted, or maintained in the Subdivision.

E.1.3. Each single-family dwelling shall have at all times an enclosed garage sufficient for the parking of a

minimum of two (2) cars. Subject to any zoning restrictions, this may be an enclosure attached to the

principal residence or a detached building.

E.1.4. The minimum floor area of the heated/air-conditioned area of any single-family dwelling shall be 1800

square feet, excluding garage, decks, or open porches. On all Lots, if the principal residence is more


than one story, it shall have a minimum enclosed heated or air-conditioned area on the ground floor

of 1100 square feet, excluding garage, decks, or open porches. Outbuildings, including garages, may

be limited in size and location by the Architectural Control Committee.

E.1.5. No portion of the Subdivision shall ever be occupied or used for any commercial or business purpose

other than a home office with no sign, or for any noxious or illegal activity, and nothing shall be done

or permitted to be done on any Lot which is a nuisance or might become a nuisance to the Owner or

Owners of any of adjoining Lots.

E.1.6. The Declarant may designate certain lots or combinations thereof for other land uses including land

areas (lots) reserved for community uses, common areas, signage and landscaping and Lots

designated for Equestrian use in conjunction with a dwelling (including barns, paddocks and exercise

areas) providing, however, such land use designations conform with approved Doña Ana County

zoning allowances and any Master Plan or Development Plan approved with the Subdivision.

ARTICLE F – GENERAL RESTRICTIONS ON USE, CONSTRUCTION LIMITS AND ACTIVITIES

F.1.1. All construction shall comply with the building and setback requirements of all applicable codes and

ordinances, unless those contained in this Declaration are more restrictive, in which case the more

restrictive requirements shall apply.

F.1.2. No building constructed in the Subdivision shall be higher than thirty feet (30’) higher than slab or

specified grade elevation as shown on the approved Grading and Drainage Plan.

F.1.3. No odor or noise shall be emitted from any Lot, which is noxious or offensive to others in accordance

with generally recognized standards for rural or semi-urban lifestyle.

F.1.4. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any Lot, except that

dogs, cats, or other household pets may be kept on a Lot, provided that they are not kept, bred, or

maintained for any commercial purpose. No more dogs or cats shall be permanently kept on any Lot

than is/are allowed under county ordinance. Excessively barking dogs shall be considered a noxious

or illegal activity, and such dogs are subject to expulsion or removal from the Subdivision. When

allowed to be kept, all pets must be kept within a fenced or bounded area upon the Owner’s Lot or

must be on a leash.

F.1.5. No portion of any wall of the single-family dwelling (including the attached garage) on any Lot shall be

constructed closer than 35 feet from the front lot line, 15 feet from the nearest side lot line, and 25


feet from the rear lot line; provided, however, that no portion of any wall of the single-family dwelling

on any corner Lot shall be closer than 25 feet from the side lot line nearest the street. The foregoing

restrictions shall not apply to courtyard walls and shall not be applied to prevent the construction or

placement of roof overhangs, fireplaces, or air-conditioning/heating units closer than 15 feet from the

nearest side lot line (15 feet from the street-side side lot line on corner Lots), but in no event shall any

portion of an roof overhang, fireplace, chimney, or air-conditioning/heating unit be placed or

constructed closer than 10 feet from the nearest side lot line (12 feet from the street-side side lot line

on corner Lots).

F.1.6. No firearms shall be discharged from within the Subdivision.

F.1.7. Lots shall not be further subdivided, and no portion of any Lot may be sold separately from the rest of

that Lot. Subject to compliance with all applicable ordinances, two or more adjoining Lots under the

same ownership may be combined to create one lot (“New Lot”). Setback requirements would then

pertain only to the New Lot. The New Lot shall be considered as one residential lot for all of the

purposes of this Declaration and may not thereafter be split or developed as two or more parcels but

shall be developed as, and remain, a single parcel.

F.1.8. No unsightly articles including propane tanks and emergency generators shall be permitted to remain

on a Lot so as to be visible from any adjoining Lot. No Lot shall be used or maintained as a dumping

ground for rubbish. Refuse, garbage, and trash shall be kept at all times in a sanitary, covered,

noiseless container, and any such container shall be kept within an enclosed structure (such as a

garage) or appropriately screened from view from ground level of all streets and other Lots; provided,

however, trash containers may be placed at the street for pickup no more than twenty-four (24) hours

prior to the scheduled pick-up time. Service areas, storage piles, compost piles, and facilities for

hanging, drying, or airing clothing or household fabrics shall be screened from view from all other

Lots. No lumber, grass, shrub or tree clippings or plant waste, metals, bulk materials or scrap, refuse,

or trash shall be kept, stored, or allowed to accumulate on any Lot except within an enclosed structure

or screened from view from all other Lots. No dumpsters shall be permitted, except for temporary use

during construction. No garbage or household trash or debris shall be burned in the Subdivision.

Screening walls for propane tanks, trash containers, generators, etc. shall be constructed of stone,

stuccoed walls, or other approved materials which match the home per H.2.2.

F.1.9. No light shall be emitted from any Lot that is unreasonably bright, or which would constitute an

annoyance to a person of ordinary sensitivities. Flood lights and bright exterior lights shall not be left

on all night. No sound shall be emitted from any Lot that is unreasonably loud or annoying to another


in the Subdivision. The New Mexico “Dark Sky” Act standards shall apply to all light emitted as

measured at the lot lines.

F.1.10. Every Owner, whether or not his Lot contains any Improvements, shall take all action necessary to

restrict the growth of, and to remove, noxious weeds or grasses in accordance with any local, state, or

federal requirements. Whenever practical, weed control actions shall not be chemically dependent but

shall utilize plantings and other means of control. All Lots shall be maintained at all times by the

Owner thereof, both prior to and after construction of Improvements thereon, in an attractive manner,

free of trash, debris, weeds, and other unsightly material.

F.1.11. All power, telephone, and other service lines installed by or at the direction of an Owner shall be

located underground.

F.1.12. No quarrying, tunneling, excavating, or drilling for any substances within the earth, including for oil,

gas, minerals, gravel, sand, or rock shall ever by permitted within the Subdivision, and no derrick or

other structure designed for use in drilling shall be erected, maintained, or permitted to remain on any

lot.

F.1.13. All Owners shall maintain any ponding or drainage easements on their lots. No Owner shall interfere

with the established drainage pattern over any Lot unless adequate provision is made for alternative

drainage and is approved by the Architectural Review Committee. No structure, fence, planting, or

other material shall be placed or permitted to remain which may damage or interfere with the direction

or flow of drainage channels, easements or ponds, which may obstruct or retard the flow of water

through drainage channels, easements, or ponds.

F.1.14. No Improvement upon any Lot within the Subdivision shall be permitted to fall into disrepair, and each

such Improvement shall at all times be kept in good condition and repair.

F.1.15. Notwithstanding any other provision in this Declaration, no vehicle, wagon, trailer, motor home,

camper trailer, boat, windmill or other mechanical equipment of any type, which is abandoned or

inoperative, shall be stored or kept on any Lot unless it is screened from view from outside the Lot

(when viewed from ground level). No such item may be kept on any street in the Subdivision. No

vehicles, recreational vehicles, wagons, trailers, motor homes, camper trailers, boats, or other

mechanical equipment may be dismantled or repaired on any Lot or on any street in the Subdivision.

F.1.16. No recreational equipment or playground equipment of any kind shall be installed, stored, or, left in


the front yard of any Lot or the street-side yard of any corner lot or in any street right-of-way, except

that one basketball goal may be used on a Lot. Tennis courts may be allowed in the Subdivision with

specific approval by the Architectural Review Committee.

Vehicles and Recreational Equipment Storage - The following provisions apply with respect to the storage,

maintenance, and use of vehicles and recreational equipment:

F.2.1. An Owner shall park his, her, or its cars in the garage or on the driveway parking pad, but not on any

other portion of the Lot unless enclosed by an approved wall or structure or with an area approved by

the Architectural Review Committee.

F.2.2. No commercial vehicle (excluding sedans or standard-sized pickup trucks which are used both for

business and personal use) nor any boat, camper trailer, motor home, wagon, trailer, recreational

vehicle, or other mechanical equipment (collectively, an “Item” or “Items”) may be kept on any Lot

unless it is kept in a fully enclosed garage or motor court, except that an Item may be temporarily

parked outside a garage or motor court, not to exceed 28 days in the aggregate during any calendar

year. House guests may park and use their recreational vehicle for up to 14 days in any thirty-day

period while visiting an Owner.

F.2.3. Any motor court shall conform to the following standards: (1) the height of the walls enclosing the

Items shall be at least 12 inches higher than the highest point of the tallest Item stored or parked in

the motor court, but in no event less than 8 feet; (2) the gate to the motor court shall be steel with

wood veneer unless the motor court does not house a recreational vehicle or motor home, in which

case the gate may be wrought iron; and (3) the motor court shall otherwise comply with the provisions

of this Declaration.

Signs -No signs or other advertising shall be displayed on any Lot unless the size, form, and number of same

are first approved in writing by the Architectural Review Committee; provided however, an Owner may, without

such prior approval, erect the following:

F.3.1 One sign identifying the Owner or occupant, and containing no other language other than

”welcome,” “mi casa es su casa,” and words or phrases of similar meaning, not exceeding two (2)

square feet in area and pertaining only to the Lot of the Owner or occupant thereof upon which the

sign is located.

F.3.2 Two (2) unlighted signs, not exceeding four (4) square feet in area each, to advertise the lease, rental,


or sale of the Lot upon which it or them is or are located. Such sign(s) may show the name, address,

and telephone number of the Owner or his authorized agent.

F.3.3 In addition to the signs mentioned in subparagraph (2) above, one “open house” sign, not exceeding

four (4) square feet in area, which invites the general public to inspect the premises for lease, rent, or

sale, provided that, at the time such property is open for inspection and the “open house” sign is

displayed, the Owner, his tenant, or his agent is in attendance to display any such house or building

thereon. Such “open house” sign shall only be displayed on or from the Lot being leased, rented, or

sold; provided however, an “open house” or directional sign (in addition to an “open house” sign) may

be placed in a median in the Subdivision by an Owner or his, her, or its agent if, but only if, such sign

is removed from the median at the end of each day. No Owner shall place any other sign in any

median in the Subdivision, or allow anyone else to place any other sign in any median.

F.3.4 Upon approval of the Architectural Review Committee, an Owner may allow contractors who are

performing work on his, her, or its Lot to erect no more than two (2) signs, not to exceed four (4)

square feet each, identifying the contractor and the type of work the contractor is performing on the

Lot or, if the Owner is also the contractor, to advertise the home or other buildings the

contractor/Owner is building in the Subdivision. No Owner shall allow any contractor performing work

on the Owner’s Lot to imply by such signs that the contractor represents the Grantor or other

contractors. For example, a sales center shall be identified as that of the particular contractor who

owns it.

F.3.5 Notwithstanding anything in this Declaration to the contrary, nothing in this Declaration shall be

construed to prevent Grantor from erecting, placing, or maintaining signs within the Subdivision as

may be determined necessary or desirable by Grantor to promote the sale and development of Lots

and homes within the Subdivision.

F.3.6 Nothing in this Declaration shall be construed as prohibiting an Owner from placing on his, her, or its

Lot on a temporary basis a sign or signs urging the election of a candidate for public office, or urging

the passage or defeat of any proposition or proposal put before the voters in any election.

F.3.7 Subject to the approval and any rules of the Architectural Review Committee, Grantor and an Owner’s

contractor may use flags and pendants to identify their particular projects.

F.3.8 Each Owner hereby authorizes Grantor and the Architectural Review Committee to remove any sign,

after notice to such Owner, that is placed by an Owner on his, her, or its Lot or elsewhere in the


Subdivision in violation of this Declaration, and releases Grantor and the Architectural Review

Committee (and its members) from any liability for doing so.

ARTICLE G – ARCHITECTURAL REVIEW COMMITTEE

There is hereby created the Architectural Review Committee. Such committee shall consist of three (3)

members. The initial members shall be Timothy A. Curry, Paul B. Curry, and John R. Curry. In the event of

death or resignation of any member of the committee, the remaining members shall have full authority to

designate a successor. If the remaining members fail to designate a successor or if all committee members

die or resign, then Grantor may appoint successor members by recording an instrument appointing such

members specifying their names, addresses, and telephone numbers. If Grantor fails to appoint successor

members, then any three Owners may form a committee by recording an instrument identifying such Owners

(serving as an interim committee) and then call for elections by the Owners for a standing Committee. In the

case more than one group of Owners attempts to form the Committee, the first recorded instrument identifying

the members shall prevail.

G.1.1 The vote or written consent of a majority of the Architectural Review Committee members shall

constitute action of the committee.

G.1.2 Except as expressly authorized in this Declaration, no Owner shall make, permit, or allow, with regard

to his, her, or its Lot, any change in the existing state of the Lot, including any scraping or vegetation

removal, without first obtaining the written approval of the Architectural Review Committee. Changes

in the existing state of a Lot that require approval shall include, without limitation, (a) the construction

of any building, structure, or other Improvement, including utility facilities or parking or storage areas;

(b) the excavation, filling, or similar disturbance of the surface of the land including, without limitation,

change of grade or elevation, ground level, or drainage pattern; or (c) the exterior appearance of any

previously approved change in the existing state of the Lot provided, however, landscaping plans need

not be submitted to the committee or approved by the committee.

G.1.3 The Architectural Review Committee shall have broad discretion to approve or disapprove any

change in the existing state of the Lot. The committee shall exercise such discretion within the

bounds of reasonableness and to carry out the following objectives: (a) to implement the general

purposes expressed in this Declaration; (b) to prevent violation of any specific provision of this

Declaration or any amendments thereto; (c) to prevent any change which would be unsafe or

hazardous to any persons or property; (d) to assure that any change will be of good and attractive


design and in harmony with the natural setting of the area and will serve to preserve and enhance

architectural consistency within the Subdivision; (e) to assure that material and workmanship for all

Improvements are of high quality comparable to other Improvements in the vicinity of the Subdivision;

and (f) to assure that any change will require as little maintenance as possible so as to assure a

better appearing area under all conditions. The committee may adopt written rules or guidelines

regarding the design, specifications, and construction of Improvements.

G.1.4 On a case-by-case basis, the Architectural Review Committee shall have the power, but shall not be

required, to authorize variances from the provisions of this Declaration that pertain to the design or

construction of Improvements on a Lot. An Owner desiring such a variance must demonstrate to the

satisfaction of the Architectural Review Committee that compliance with a particular provision would

be impractical or would impose an undue and inequitable hardship on such Owner. Hardship or

expense resulting from an Owner’s failure to follow the provisions of this Declaration requiring the

submittal of plans and specifications of proposed Improvements to the Architectural Review

Committee, and the approval of such committee, prior to commencement of construction, shall not be

adequate grounds to justify a variance. Any variance granted by the Architectural Review Committee

shall be in writing and shall be the minimum variance necessary to mitigate the hardship

demonstrated by the requesting party.

G.1.5 Prior to expenditures of any substantial time or funds in the planning of any proposed change in the

existing state of a Lot, the Owner of such Lot shall advise the Architectural Review Committee in

writing of the general nature of the proposed change and shall, if requested by the committee, meet

with a member or members of the committee to discuss the proposed change. Such Owner shall read

or become familiar with any guidelines or rules which may have been prepared or formulated by the

committee and shall, if requested by the committee, furnish the committee with preliminary plans and

specifications for comment and review. After the nature and scope of a proposed change in the

existing state of the Lot is determined and prior to the commencement of work to accomplish such

change, the Architectural Review Committee may require the Owner to furnish, and the Owner shall

furnish, if so required, three (3) copies of a complete and full description of the proposed change in

writing and with final working drawings, drawn to such scale as may be reasonably required by the

Architectural Review Committee, showing all boundaries, existing and proposed contour lines and

elevations at reasonably detailed intervals, all existing and proposed Improvements, the existing and

proposed drainage pattern, the existing and proposed utility facilities, and the existing substantial

trees and shrubs. The Owner shall also furnish to the committee any and all further information with

respect to the existing state of the Lot, which the committee may reasonably require to permit it to

make an informed decision on whether or not to grant approval of the change.


G.1.6 With respect to any buildings and other structures, the Architectural Review Committee shall require

submission of, and Owners shall submit, in duplicate, floor plans, elevation drawings, and final

working drawings, all drawn to such scale as may be reasonably required by the committee,

descriptions of exterior materials, and final construction specifications. Where buildings or structures

or other Improvements which reasonably require plans and specifications are proposed to be

constructed or built, a reasonable fee, as shall be determined from time-to-time by the committee,

shall be paid to the committee to cover costs and expenses of review. No proposed change in the

existing state of a Lot shall be deemed to have been approved by the committee unless its approval is

in writing executed by a majority of the members of the committee, provided that approval shall be

deemed given if the committee fails to approve or disapprove a proposed change or to make

additional requirements or request additional information within 45 days after a full and complete

description of the proposed change and all additional instruments, documents, and plans have been

furnished in writing to the committee with a written and specific request for approval.

G.1.7 After approval by the Architectural Review Committee of any proposed change in the existing state of

a Lot, the proposed change shall be accomplished as promptly and diligently as possible and in

complete conformity with the description of the proposed change and any proposed plans and

specifications therefore given to the committee. Failure to accomplish the change strictly in

accordance with the description thereof and approved plans and specifications therefore shall operate

to automatically revoke the approval of the proposed change, and, upon demand by the committee,

the Lot shall be restored by the Owner as nearly as possible to its state existing prior to any work in

connection with the proposed change. The committee and its duly appointed agents may enter upon

any Lot at any reasonable time or times to inspect the progress or status of any changes in the

existing state of a Lot being made or which may have been made. The committee shall have the right

and authority to record a notice to show that any particular change in the existing state of a Lot has

not been approved or that any approval given has been revoked.

G.1.8 The Architectural Review Committee shall not be liable in damages to any person or entity submitting

any proposed plans for approval or to any Owner or other person or entity, by reason of any action,

failure to act, approval, disapproval, or failure to approve or disapprove with regard to such plans, the

granting or failure to grant a variance, or the enforcement or non-enforcement of any of the provisions

of this Declaration. Any person or entity acquiring any interest in any property in the Subdivision, or

any person or entity submitting plans to the Architectural Review Committee for approval, by so doing,

agrees and covenants that he, she, or it will not bring any arbitration proceeding or civil action seeking

any relief from or against Grantor, the Architectural Review Committee, its members, or its advisors,


employees, or agents.

G.1.9 The Architectural Review Committee shall keep and safeguard for at least two (2) years complete

permanent written records of all applications for approval submitted to it (including one set of all

preliminary sketches and all plans so submitted) and of all actions taken by it.

G.1.10 The Architectural Review Committee is hereby granted the power to make assessments as set forth

herein.

ARTICLE H – STRUCTURE, LANDSCAPE DESIGN AND ARCHITECTURAL COMMITTEE GUIDELINES

These guidelines are to be used, as a minimum, in the evaluation of submitted plans and for enforcement of

these Covenants. These guidelines can be amended, modified, expanded and revised as they apply to the

entire Subdivision only by a unanimous vote of the Committee and after notification to all Owners of the

Property. Any variance or waiver to any provision of these guidelines may by granted by the Committee on a

case by case basis and must be in writing.

These guidelines are enforceable in the same manner as the Covenants and if legally challenged, constitute

additional general restrictions and allowances for the Property as provided for by the Declarant. All buildings

and structures shall comply with the following specifications:

H.1.1. No building or Lot in the Subdivision shall be decorated in an outlandish, distasteful, garish, extreme,

or otherwise offensive style which is not in harmony with the character of the Subdivision as

determined by the Architectural Review Committee. This section shall not be construed or applied so

as to prohibit temporary holiday displays during Christmas, Hanukah, Easter, or other well-recognized

religious holidays, and Thanksgiving and Halloween.

H.1.2. All buildings must be site-built frame, adobe, rammed earth, or ICF (foam) block construction. No

manufactured homes, metal pre-fabricated buildings, mobile homes, trailers, tents, teepees, yurts,

dome, pyramids, A-frames, or Quonset huts may be constructed or moved onto any Lot.

H.1.3. The architectural style of all single-family dwellings and outbuildings shall be that style generally

characterized as “Southwestern” style (including Pueblo, Mission and Territorial) which style may be

further defined or described by guidelines or rules adopted by the Architectural Review Committee.

H.1.4. All driveways and parking pads shall be concrete, gravel, crushed rock, or asphalt. Compacted native

soil may be allowed for parking areas and driveways if approved by the Committee.


H.1.5. Exterior covering materials on buildings shall be of stucco or stucco appearance or such other

material (such as brick or other masonry treatments) as may be approved by the Architectural Review

Committee and shall be designed so that the appearance blends and coordinates with the natural

surroundings in a pleasing manner. Split face block, wood, stone, textured and colored simulated rock

or brick accents may be used with prior approval by the Architectural Review Committee. Thin

appliqués (simulating brick, masonry), wood siding, vinyl siding, and aluminum siding are not

permitted. Exterior colors shall be desert tones such as tones of brown, tan, beige, avocado and dusty

rose. Bright, flashy, unnatural color schemes are not permitted; provided, however, contrasting color

accents may be used with prior approval of the Architectural Review Committee.

H.1.6. Exposed concrete block (C.M.U.) construction is not permitted for any permanent finish. Exposed

masonry units, if approved, must have integral color as part of the basic material specified.

H.1.7. Bright, reflective metal roofs are not permitted. Self-oxidizing copper or Cor-ten steel or non-reflective

painted, or matte finish metal roofs are permitted (subject to the other provisions regarding roofs set

forth in this Declaration) providing that the color range is muted or non-reflective upon weathering.

H.1.8. All pitched roofs shall be of only mission-style clay, metal, concrete tile, concrete, or composite tile.

Asphalt built-up, asphalt shingle, fiberglass shingle, foam, wood shakes or shingles, metal tile, copper

shingle, shall not be used on any pitched roof. Any building constructed in the Subdivision with a flat

roof shall have parapet walls on all sides.

H.1.9. No Owner shall allow the elevation of any portion of the Lot to be increased by more than 12 inches

from the highest undisturbed soil level within the footprint of the home.

H.1.10. No Owner shall allow any portion of any water retention area or area of designated water conveyance

(per the Master Drainage Plan and identified easements on the final plat) on the Lot to be altered or

filled without the express written permission of the Architectural Review Committee and the Doña Ana

County. All owners are advised that the approved Drainage Plan calls for an average of 0.022 Acre

Feet of detention ponding on the downstream portion of all lots (generally an area 40’ x 20’ x 2’ deep,

with side slopes not exceeding 3:1). Said ponding area or any revisions to any portion of the approved

Drainage Plan shall be included with the Architectural Committee submittals and shall be

acknowledged as a permanent maintenance responsibility of the Owner(s).

H.1.11. All heating and cooling equipment shall be mounted in the building which it serves or outside the


building on the ground. No heating and cooling equipment may be mounted on the roof or on an

exterior wall of a building unless completely enclosed as part of the structure’s architecture. A supply

or return plenum may be constructed on an exterior wall so long as it is incorporated into the

architectural design of the building, housed in a framed chase, and finished with the same finish as

the building it serves. Ground mounted compressors should be screened by screen walls as

described in H.2.2. or by plant material which shall screen 50% or more of the equipment.

H.1.12. Exclusive and non-exclusive easements for the installation and maintenance of utilities, drainage

easements, and pending easements and other uses are reserved and are hereby expressly

acknowledged and granted as shown on the Subdivision Map. Upon such easements, no structure

shall be placed or permitted to remain which would interfere with the reasonable use of the easement.

All portions of a Lot, including those portions subject to an easement, shall be maintained by the

Owner of the Lot, including drainage easements and ponds.

Perimeter Walls, Retaining Walls and Fences - The intent and spirit of provisions regulating fences, walls

and yard enclosures is to provide for a general feeling of natural openness and desert beauty throughout the

Organ Mesa Ranch Subdivision. The following provisions shall apply to all Lots with respect to perimeter walls,

retaining walls, and fences:

H.2.1 No courtyard, backyard or perimeter wall, retaining wall, or stacked rock soil retention system may be

constructed, removed, replaced, or altered in height, width, or length without the prior written approval

of the Architectural Review Committee.

H.2.2 Allowable materials to be used in the construction of perimeter walls, equipment screening walls,

courtyard or backyard walls, retaining walls, and fences shall be local stone, stucco, earth tone

colored split face block with the rough face outward, welded steel or wrought iron, wood split rail,

or a combination thereof.

H.2.3 Materials specifically disallowed for any wall or fence are chain link, gray cinderblock, vinyl rail, post

and wire of any kind, tin, sheet metal, or corrugated metal.

H.2.4 The total area enclosed on any Lot by Courtyard or Backyard walls and fences shall not be more than

10,000 square feet. The footprint of the dwelling and outbuildings shall not be calculated as a portion

of the 10,000 square feet.


H.2.5 Setbacks and dimensions for perimeter walls and fences shall conform to the County of Doña Ana

Zoning Code and are generally described as property-line enclosures around designated Subdivision

areas, phases and Major Street rights of way.

H.2.6 Minimum front, side, rear and side street setbacks for Courtyard or Backyard walls shall be the same

as for the structural setbacks (County Zoning Code). The Committee has tentative building envelopes

established whereby the general allowable areas within each lot are depicted subject to the design and

placement of the structures by the Owner.

H.2.7 No perimeter or backyard wall or fence shall be placed or permitted to remain which may damage or

interfere with the direction or flow of drainage channels, easements, or ponds. No perimeter wall or

fence shall encroach on any drainage or ponding easement, as recorded on the Organ Mesa Ranch

Subdivision plat or described on the Drainage and Grading Plan approved for the Subdivision unless a

drainage and grading plan modification is approved by the Architectural Committee and Doña Ana

County.

H.2.8 No perimeter wall or fence shall be more than 7 feet in height from grade level. In retaining wall

situations no perimeter wall or fence shall be more than 7 feet in height as measured from the retained

level, in the event that the wall is retaining soil. i.e.: if a wall is retaining 3 feet of soil it may be 10 feet

high on the low side and 7 feet high from the retaining side.

H.2.9 Setback requirements for all walls and fences may be modified by the Architectural Review

Committee if the shape of a Lot makes compliance with such requirements unpractical.

H.2.10 All Lots adjacent to the Subdivision Perimeter(s) and Major Street rights of Way may have

constructed on them lengths or portions of rock Perimeter Walls at the option of the Grantor. All such

Perimeter Walls, whether constructed by the Grantor or allowed for construction by the Owner are the

maintenance responsibility of the Owner.

H.2.11 All rock walls, including any allowed Perimeter walls, Backyard Walls and retaining walls shall be

constructed in accordance with the standards (“design Standards”) set forth in Division 3, Article III,

Chapter 32, of the Las Cruces Municipal Code as it may be amended from time-to-time.

Solar Collectors, HVAC Equipment, Satellite dishes, Antennas - Solar Collectors, HVAC Equipment,

Satellite dishes, and Antennas in the Subdivision must be well placed and in harmony with the architectural

character of the structure:


H.3.1 Satellite dishes greater than 18 inches in diameter are not allowed in the Subdivision. Satellite dishes

no larger than 18 inches in diameter may be installed on roofs, but not on exterior perimeter walls or

exterior perimeter parapet walls. Satellite dishes should generally be an earth tone color, when

possible. Such dishes may also be installed within 25 feet of side lot lines in the rear yard if they are

hidden from view from the front of the residence and from adjoining Lots at ground level.

H.3.2 Solar collectors may be installed on the ground in the back yard, but must be out of sight of the street

and may not be higher than the height of the lowest perimeter wall in closest proximity to the collector.

Solar collectors may not be installed on pitched roofs. Solar collectors may be installed on flat roofs

but only if they, (a) are installed so that the bottom edge surface of each collector panel is parallel to

the roof surface; and (b) are hidden from view by the parapet walls.

H.3.3 Radio and television antennas may be installed on roofs but only if they are completely hidden from

view behind parapet walls and if they are completely hidden from view from the ground elevation of

adjoining Lots at a line of sight beginning at a point 6 feet above such ground elevation. Attic

installations of radio and television antennas are recommended.

Play Equipment, Propane Storage, Emergency Generators, Accessory Buildings, Storage - Play

equipment, propane storage, emergency generators, accessory buildings, pre-manufactured storage units and

Owner placed items of occupancy shall be diminished from view and appearance from streets and from

neighboring lots.

H.4.1 No pre-manufactured storage sheds, playhouses, doghouses, dog runs, or similar or related type

objects shall be located on any Lot if the height of such object is greater than the height of the lowest

perimeter wall or backyard wall on said Lot.

H.4.2 If no walls are adjoining the proposed item, structure or area, the limits of visibility for required

screening on side or front lot lines is within 35 feet of the lot line and on rear or side lot lines, within 25

feet of the lot line. In no case shall a storage shed, playhouse, or similar object be higher than 7 feet,

even if the wall closest to such object exceeds 7 feet (as may be granted by variance or waiver). If

said objects are located on a Lot which is lower in elevation than an adjoining Lot, then the object shall

be located next to the party wall of the lot of higher elevation in order to make said object less

noticeable from the lot of higher elevation.

H.4.3 Nothing in this section shall be construed to prohibit a gazebo, cabana, or storage shed on a Lot so


long as it is of the same materials, and architectural style and detail as the single family dwelling on

such Lot and so long as the gazebo, cabana, or storage shed has been approved by the Architectural

Review Committee and complies with all applicable zoning and setback ordinances.

ARTICLE I -- CONSTRUCTION OF IMPROVEMENTS

All construction shall comply with all applicable building codes, regulations, ordinances, and statutes. In

addition to the provisions contained elsewhere in this Declaration, the following provisions shall apply with

respect to the construction of Improvements in the Subdivision:

I.1.1 No Owner shall commence or allow construction on his, her, or its Lot of any Improvement unless and

until the Owner has first submitted a construction schedule, the plans, specifications, and other

information identified herein with respect to such Improvement(s), and such plans and specifications

and the proposed Improvement have been approved by the Architectural Review Committee as

indicated by the written endorsement of the committee on such plans and specifications. Nor shall any

Owner remove, repair, replace, alter, or modify any existing Improvement unless and until written

plans and specifications for same have been submitted to the Architectural Review Committee and

such plans and specifications and the proposed removal, repair, replacement, alteration, or

modification have been approved by the Architectural Review Committee as aforesaid.

I.1.2 The foregoing provisions shall not be construed to require the submission of plans and specifications

or approval thereof by the Architectural Review Committee with respect to repair, replacement,

alteration, or modification of the interior of a building, or with respect to the repair, replacement,

alteration, or modification (“Work”) of an existing exterior Improvement. No material changes or

deviations in or from the approved plans and specifications may be made without the express written

approval of the Architectural Review Committee. Plans submitted to the committee shall be to scale

and shall include, among other things, the location(s) and dimensions of existing and proposed

Improvements on the Lot, the location(s) of any drainage channels or retention ponds on the Lot, and

architectural drawings including elevations.

I.1.3 Unless otherwise approved in writing by the Architectural Review Committee, construction of a single-

family dwelling on a Lot and all landscaping required by this Declaration, once commenced, shall be

pursued by the Owner with due diligence continually from the time of commencement until fully

completed and shall be completed within nine (9) months from the date of commencement. Unless

otherwise approved in writing by the Architectural Review Committee, the construction of all other

Improvements on a Lot shall be completed within three (3) months from the date of commencement of

construction. With respect to single-family dwellings and other buildings, construction shall be deemed


to commence when the building permit has been issued by Doña Ana County; construction shall be

deemed to be completed on the date a certificate of occupancy is issued or the date Doña Ana County

inspects and gives final approval of the work. With respect to other Improvements, construction shall

be deemed to commence on the date any required building or other permit is issued or, if no permit is

required, when construction actually begins; completion will be deemed to occur when any required

final inspection and approval has been obtained from the City of Las Cruces or, if no inspection or

approval is required, when construction is actually completed. Permissible accessory structures shall

not be constructed on a Lot prior to the construction or substantial construction of the single-family

dwelling on such Lot. The Architectural Review Committee shall not approve an extension of the time

limitations set forth in this section unless the Owner’s inability to comply with such limitations is the

result of the scope of the proposed improvement, fire, casualty, acts of God, strikes, unavailability

beyond the control of the Owner of materials specified on the approved plans and specifications

necessary for the completion of the Improvement, or interference by other persons or factors beyond

the control of the Owner which prevents timely completion. Financial inability of an Owner or an

Owner’s contractor(s) to secure labor or materials, or discharge liens on the Lot, shall not be deemed

to be a factor beyond the Owner’s control.

I.1.4 If after commencement of construction of an Improvement, such construction is not completed within

the time limitations set forth in this Declaration, and if no extension of time has been given by the

Architectural Review Committee, or if, after commencement of construction of a single-family dwelling

on a Lot, substantial construction activities on such dwelling ceases for a period of one hundred and

twenty (120) days and no extension has been given by the Architectural Review Committee, Grantor,

the Architectural Review Committee, or the Owner of another Lot shall have the right to seek (without

prior resort to binding arbitration) an injunction against the Owner of the Lot compelling the completion

of the construction. The plaintiff shall be entitled to an award of costs and attorney fees, and such

costs and attorney fees shall become a lien on the Lot (which lien arises on the date of the award).

Alternatively, Grantor or its designee may enter upon such Lot and complete any partially completed

Improvement(s) (or remove them if the cost to complete would result in economic waste and if no

Mortgage securing a construction loan is recorded against such Lot). Grantor shall claim a right of lien

against the Lot for the expenses incurred by Grantor in performing such work, plus interest at the rate

of 10% per annum from the date the work is completed. Such lien shall arise on the date the work is

completed.


I.1.5 No building shall be occupied until the issuance of a certificate of occupancy with respect to such

building by Doña Ana County.

I.1.6 The provisions of this Declaration shall not be construed so as to unreasonably interfere with or

prevent normal construction activities during any construction of Improvements by any Owner

(including Grantor) so long as such Improvements conform in all ways with this Declaration and so

long as such construction activities do not in any way damage, hinder, or delay the construction or

development activities of others within the Subdivision. Specifically, no such construction activity shall

be deemed to constitute a nuisance or violation of this Declaration by reason of noise, dust, presence

of vehicles or construction machinery, erection of temporary structures, posting of signs or similar

activities, provided that such construction is pursued to completion with reasonable diligence and

conforms to usual construction practices in the area. In the event of any dispute, a temporary waiver of

the applicable provision, including, but not limited to, any provision prohibiting temporary structures,

may be granted by the Architectural Review Committee, provided that such waiver shall be only for the

reasonable period of such construction. Such waiver may, but need not, be recorded or in recordable

form.

I.1.7 During construction of a single-family dwelling on a Lot, the Owner of such Lot shall ensure that

construction activities are conducted in such a manner so as to not damage, hinder, or delay the

construction or development activities with respect to other Lots, and so as to not impair the value of

other Lots. During construction, an Owner shall keep his, her, or its Lot substantially free of weeds and

excessive construction debris and shall cordon or mark the allowed limits of construction activities as

approved by the Committee. Should an Owner fail to comply with this provision, Grantor retains, and

each Owner grants, the right to enter upon such Lot and remove weeds or debris or repair ground

disturbance after notice has been given to the offending Owner and the Owner has failed to remedy

the situation. Grantor shall claim a right of lien on such Lot for the costs incurred by Grantor in doing

so, plus interest at the rate of 10% from the date the work is completed. Such lien shall arise on the

date the work is completed.

I.1.8 Temporary storage and parking for contractor’s equipment during actual construction is permitted,

subject, however, to rules and regulations as may be prescribed by the Architectural Review

Committee and only within the construction area delimited as provided above.

I.1.9 The provisions of this Declaration shall not be construed so as to prevent or limit Grantor’s right to

maintain construction, sales, or leasing offices or similar facilities on any property within the

Subdivision owned by Grantor or on the property of any other Owner if such Owner consents to such

use, nor to prevent or limit Grantor’s right to post signs incidental to construction, sales, or leasing.


I.1.10 Model homes, temporary real estate offices, and adjacent parking areas are permitted, subject,

however, to rules and regulations as may be prescribed by the Architectural Review Committee.

I.1.11 An Owner of a Lot on which Improvements are constructed shall be responsible for the removal of

any construction debris left by the Owner or the Owner’s contractors on any adjoining Lots. If an

Owner fails to remove such debris upon completion of construction, Grantor or the Owner of the

adjoining Lot may, without prior notice to such Owner, remove it at such Owner’s expense. Grantor or

the Owner of the adjoining Lot shall claim a right of lien against the offending Owner’s Lot for the costs

incurred in removing the debris, plus interest at the rate of 10% per annum from the date the work is

completed. Such lien shall arise on the date the work is completed.

I.1.12 All Improvements shall be constructed by licensed contractors. Without the prior written approval of

the Architectural Review Committee, no single-family dwelling shall be constructed by or at the request

of any Owner unless the general contractor which or who undertakes such construction or makes

application for the building permit for such dwelling has held a GB98 contractor’s license issued by the

State of New Mexico, or equivalent, for a period of five (5) years preceding the date on which

construction is commenced and who has constructed five (5) or more single-family dwellings in Las

Cruces or Doña Ana County, New Mexico, under requirements at least as stringent as those set forth

in this Declaration. The purpose of this section is to ensure attractive, quality construction in the

Subdivision and to minimize the possibility of unfinished dwellings in the Subdivision resulting from a

contractor’ default, or failure or inability to complete a project. Accordingly, this requirement may be

waived by the Architectural Review Committee on a case-by-case basis by a showing by an Owner

that such Owner’s proposed contractor has the experience, knowledge, reputation, or financial

wherewithal indicative of such contractor’s ability to provide quality, attractive work in a finished

product in accordance with the plans and specifications approved by the Architectural Review

Committee.

I.1.13 Grantor makes no representation regarding soil compaction on Lots. Each Owner is solely

responsible for ensuring that soil compaction on his, her, or its Lot meets all applicable standards.

ARTICLE J -- LANDSCAPING

All Lots shall be landscaped in accordance with the provisions of this Declaration. Such provisions constitute

the minimum landscaping necessary to fulfill the requirements of this Declaration. Owners are free to install

landscaping beyond the minimums set forth herein.

J.1.1 All landscaping for front and side yards required by this Declaration shall be completed by an Owner

no later than ninety (90) days after the certificate of occupancy is issued by Doña Ana County with

respect to the single-family dwelling on the Lot. Should any Owner fail to landscape such Owner’s Lot


within the time specified herein in accordance with this Declaration, Grantor may, but is not required

to, landscape such lot. Grantor shall claim a right of lien against such Lot for the costs incurred by

Grantor in doing the work plus interest at the rate of ten percent (10%) per annum from the date the

work is completed. Such lien shall arise on the date the work is complete.

J.1.2 Landscaping plans need not be submitted to or approved by the Architectural Review Committee.

However, the Owner of a Lot shall be responsible for ensuring that his, her, or its Lot is landscaped in

accordance with the requirements of this Declaration and that any limitations on the height of

vegetation set forth herein or in any deed restriction are complied with.

J.1.3 Landscaping installed or directed by the Grantor, in conjunction with Perimeter walls and Subdivision

entry features, shall be by a design or plan which may incorporate any plant material, ground cover,

irrigation and installation approved by the Architectural Committee.

J.1.4 No Owner shall allow, for example, a male mulberry tree or other plant type or specie which is dirty,

allergenic or considered a nuisance to be planted or to remain on the Lot.

J.1.5 Non-native desert landscaping shall be limited to the setback and square footage requirements for

courtyard and backyard walls and only be in locations allowed by the Committee. Non-native

landscaping shall be described as grass, crushed rock or cinders, non-desert shrubs or bushes, and

non-desert trees.

J.1.6 Native desert landscaping shall be required outside the setback and square footage requirements

herein. Native desert landscaping shall be described as the existing naturally occurring plants and

cactus, possibly enhanced with imported desert and drought tolerant plants and cactus. Scraping,

blading, or paving the natural desert landscape outside the areas put forth in the requirements for

courtyard walls shall be prohibited except for driveways and limited parking area. These areas may

be covered with landscaping rocks or stone, cinders, crusher fines, or other landscape covering, that

conforms to native terrain coloration.

J.1.7 Trees shall be limited to the allowed landscape areas and shall be placed only in random order (as

opposed to being planted in rows as a windbreak or sun shielding). The only trees allowed outside of

these limits would be desert trees less than 12 feet in height that would qualify as native landscaping.

ARTICLE K – EQUESTRIAN LOTS

Certain Lots are designated on the approved Master Plan for the Subdivision as Lots allowing horses. At the

time of this instrument, said lots are in Phase 1. The number and location of equestrian lots is determined by


the declarant pursuant to the Master Plan (which may be amended from time to time, by the declarant).

Provisions for these Lots as administered by the Architectural Committee are as follows:

K.1.1 No arenas, stages, exhibition areas or rodeo areas are allowed. The location and materials for barns,

stables, fencing and paddock areas are subject to the approval of the Committee and waivers for

materials and walls may be granted on a case by case basis.

K.1.2 All storage buildings for hay, feed, tack and unused training equipment must be enclosed. Outdoor

storage of horse trailers, shade structures and training equipment may be allowed on a case by case

basis by the Committee.

K.1.3 Painted or clad (earth toned) metal post and wire fences (including limited use of barbed wire) are

allowed for fencing in paddock, pasture or horse pens.

K.1.4 Fencing setback requirements for fencing or walls shall be 10 feet from any property line abutting a

street or road. Unless waived by the Committee, fencing or wall setbacks from side lot lines shall be

5 feet from any other Subdivision property line.

K.1.5 Easements for Equestrian passage, as shown on the recorded Plats for the Subdivision, shall be

fenced. Said easements allow for the passage of riders within the Subdivision and for passage by

others. Cavaletti, unlocked gates and other devices may be installed by the Owner or directed by the

Committee to discourage unauthorized use by vehicles, motorcycles, all terrain vehicles and other

motorized vehicles.

Landscaping and maintenance provisions for Equestrian lots - Landscaping and maintenance provisions

for Equestrian Lots, designated as Lots allowing horses, shall be as follows:

K.2.1 Area inside the setbacks described for backyard or courtyard walls shall be landscaped the same as

put forth in Section J.

K.2.2 Area outside the setbacks described for courtyard and backyard walls but not within the front setback

areas may be modified by the Architectural Committee to allow for the use by horses. This may

include areas for paddocks, feeding and exercise areas where certain native plants and grasses may

be injurious or harmful. Approved, irrigated areas for grasses are to be considered allowed vegetative

ground cover.

K.2.3 Horses, allowed livestock and animal husbandry shall not be conducted for commercial purposes.

Other household pets and large animals may be kept, provided that they are not allowed to roam or


leave their owners property nor are they to be kept, bred or maintained for any commercial purposes.

K.2.4 In respect to animals, all residents must maintain their yards and their premises in such a manner

that will not cause any offense to any of the other residents of the Subdivision. All fences, enclosures,

barns, paddocks, exercise areas, feeding and bedding areas and forage areas are subject to the

approval of the Architectural Control Committee, including ongoing maintenance. The Committee may

deny uses not consistent with these guidelines based on shelter, odor, noise, debris, flies, rodents or

general objection to the occupancy of the Property allowing same:

K.2.4. Up to 2 horses or approved large animals per lot will be allowed without atypical provisions for

maintenance. The size of the lot and proposed construction may be the basis for additional large

animals. Conventional barns, paddocks and exercise areas shall be shown on the submitted plans. For

purposes of this restriction, horses, mules and llamas may be considered large animals.

K.2.5. Up to six (6) rabbits, chickens (excluding roosters), poultry, game birds or other poultry will be allowed

per lot without atypical provisions for maintenance. Cage areas, roosts, barns and exercise areas shall

be shown on the submitted plans.

K.2.6. Husbandry of all other animals including swine, cattle, ostrich and emus, exotic beasts and animals of

burden are not allowed unless the Committee approves their husbandry, breeding, transport or

storage by the submitted plans and maintenance schedules.

ARTICLE L -- ASSESSMENTS

L.1.1 Each Owner of a Lot, by acceptance of a deed therefore, whether or not it be so expressed in the

deed, shall be deemed to covenant and agree with other Owners and with Grantor to pay to Grantor

or its designee periodic assessments to finance and fund the direct cost of any repair, maintenance,

or replacement of any and all perimeter walls, paths, trails, landscaping or signs originally erected or

required by Grantor at the entrances, perimeter and pedestrian easements of the Subdivision.

L.1.2 Temporary construction easements not to exceed ten (10) foot in width are hereby reserved on any

adjacent Lot to Perimeter Walls or portions thereof constructed by Grantor for the purpose of placing,

replacing, maintaining, and repairing such improvements.

L.1.3 An assessment may be made by Grantor or its designee by sending a written notice of assessment to

every record Owner to the address of such Owner as indicated in the records of the Doña Ana County

assessor, specifying the expenditure made, or that needs to be made in the discretion of Grantor or

its designee, the pro-rata share of such expenditure attributable to such Lot, and the date of the

assessment notice. Each Owner shall pay the amount so assessed to Grantor or its designee within


20 days after the date of the assessment notice. The failure of an Owner to pay an assessment so

assessed shall give rise to a lien against the Owner’s Lot in favor of Grantor or its designee in an

amount equal to the amount assessed plus interest at the rate of 10% per annum from the date of

assessment. Such lien shall arise on the date payment is overdue. In the event Grantor ceases to

exist, the “designee” as used in this section shall mean the Architectural Review Committee or an

Owner who undertakes to repair, maintain, or replace such improvements in the absence of Grantor

or Architectural Review Committee.

L.1.4 Each Owner of a Lot, by acceptance of a deed therefore, whether or not it be so expressed in the

deed, shall be deemed to covenant and agree with other Owners and with Grantor to pay to Grantor

or the Architectural Review Committee (and its members) or its designee periodic assessments to

finance the defense of any suit or proceeding brought against Grantor or the committee (or its

members) which seeks any damages or injunctive relief as a result of or with respect to the approval

of, disapproval of, or failure to consider any Owner’s proposed plans or specifications or request for a

variance or for any other action or inaction of Grantor or the committee (or its members). An

assessment may be made by sending a written notice of assessment to every record Owner to the

address of such Owner, as indicated in the records of the Doña Ana County assessor, specifying the

costs and attorney fees incurred or anticipated by Grantor or the committee (or its members) to be

incurred in the defense of the suit or proceeding, the pro-rata share of such costs and attorney fees

attributable to such Owner’s Lot, and the date of the assessment notice. Each Owner shall pay the

amount so assessed to Grantor or the Architectural Review Committee (or its members or designee)

within 20 days after the date of the assessment notice. The failure of an Owner to pay an assessment

so assessed shall give rise to a lien against the Owner’s Lot in favor of Grantor or the committee (or

its members) in an amount equal to the amount assessed plus interest at the rate of 10% per annum

from the date of the assessment. Such lien shall arise on the date payment is overdue. Any amount

assessed and collected in excess of the amount actually spent on defense of the suit or proceeding

shall be refunded, on a pro-rata basis, to the Owners who paid such assessment.

ARTICLE M -- LENDERS= REGULATIONS

In order that the single-family dwellings erected in the Subdivision may qualify for existing subsidized lending

programs, Grantor declares that the following rights exist in favor of any first mortgagee, notwithstanding

contrary or conflicting provisions contained elsewhere in the Declaration.

M.1.1 For a period of no more than 3 years from the date of recordation hereof, the holder of a first

Mortgage on any Lot or single-family dwelling thereon may request written notice from Grantor of any

default by the mortgagor of such property in the performance of such mortgagor’s obligations under

this Declaration. Such request shall state the name and mailing address of the requesting mortgagee

and the official records book and page number, file number or other reference identifying the


Mortgage, the Lot number encumbered by said Mortgage, and a reference to this Declaration. Each

notice of default given pursuant to such request may be sent by regular mail, postage prepaid,

addressed to the mortgagee at the address stated in such request.

M.1.2 Any holder of a first Mortgage who acquires title to a Lot pursuant to the remedies provided for in the

Mortgage, or foreclosure of the Mortgage, shall be exempt from Grantor’s option to re-purchase the

Lot for failure to commence construction within the time specified in this Declaration. Provided

however, upon conveyance of the Lot by the mortgagee, such option shall reattach to the Lot and

shall be exercisable upon the failure of the buyer from such mortgagee to commence construction of

a single family dwelling within two years from the date of the purchase from the mortgagee.

M.1.3 Unless at least seventy-five percent (75%) of the holders of first Mortgages (based upon one vote for

each Mortgage) of single-family dwellings within the Subdivision have given their prior written

approval, Grantor shall not be entitled to Change the method of determining the obligations,

assessments, or other charges which may be levied against an Owner of a Lot; and,

M.1.4 By act or omission change, waive, or abandon any scheme or regulation pertaining to the architectural

design or the exterior appearance of single-family dwellings and other structures, or the construction

and maintenance of Improvements, where such change, waiver, or abandonment would be result in a

material change in the scheme of development of the Subdivision; provided however, this provision

shall not be construed as imposing a continuing obligation on Grantor to enforce the provisions of this

Declaration through arbitration proceedings, judicial action, or otherwise.

M.1.5 No amendment to this Declaration shall affect the rights of any mortgagee under a Mortgage who

does not join in the execution thereof so long as his, her, or its Mortgage is recorded prior to the

recordation of such amendment. Provided however, such amendments shall be binding on any

person or entity who acquires a Lot from a mortgagee who acquired the Lot as a result of foreclosure

of a Mortgage or a deed in lieu of foreclosure.

ARTICLE N -- ENFORCEMENT

N.1.1 As to Grantor or any and all grantees deriving title to any Lots through Grantor, the covenants,

conditions, and restrictions contained in this Declaration shall operate as covenants running with the

land for the benefit of Grantor and all Owners of Lots.

N.1.2 Any violation of any state, municipal, or local law, ordinance, or regulation pertaining to the ownership,

occupation, or use of any property within the Subdivision is hereby declared to be a violation of this

Declaration and subject to any or all of the enforcement procedures set forth in said Declaration.


N.1.3 Except as otherwise specified in this Declaration, each remedy provided by this Declaration is

cumulative and non-exclusive.

N.1.4 Every act or omission whereby any provision of this Declaration is violated, in whole or in part, is

hereby declared to be a nuisance and may be enjoined or abated (subject to the requirement for

binding arbitration set forth below), whether or not the relief sought is for negative or affirmative

action, and the provisions of this Declaration may be otherwise enforced, by Grantor (or its

successors in interest), the Architectural Review Committee, or any Owner or Owners; provided

however, neither Grantor nor the Architectural Review Committee shall have the obligation to enforce

the terms of this Declaration.

Liens

N.2.1 Except where otherwise specified in this Declaration, no lien created or authorized by this Declaration

shall be enforceable unless a claim of lien is recorded within 12 months of the date on which the lien

arose. Except as otherwise provided in this Declaration, no interest in a Lot shall be taken subject to a

lien created or authorized by this Declaration unless a claim of lien has been recorded by the lien

claimant prior to the recordation of the instrument transferring, conveying, or creating such interest,

even if the lien arose prior to the recordation of such instrument. Nothing in the foregoing sentences

of this paragraph shall be construed as a limitation on the right of Grantor or of an Owner to whom an

obligation is owing from another Owner to assert a claim for payment against the owing Owner;

provided however, any such claim shall be asserted within 18 months of the date on which the work

was performed or payment made giving rise to the obligation.

N.2.2 By taking title to a Lot, each Owner consents to the recordation in such Lot’s chain of title of a claim of

lien for a lien authorized or created by this Declaration.

N.2.3 A claim of lien required to be recorded by this Declaration shall contain the name, address, and

telephone number of the lien claimant, the legal description of the Lot against which the lien is

claimed and the name of the then record owner thereof, an explanation of the basis of the lien

(including reference to the portion of the Declaration on which the lien is based, a description of the

work performed or payment made giving rise to the lien, and the date on which the lien arose), and

the amount claimed.

N.2.4 Except as specifically provided otherwise in this Declaration, any lien arising from or created or

authorized by this Declaration shall include the costs and attorney fees incurred by the person

claiming the lien in connection with the preparation, recording, and foreclosure of the lien. If the

Owner of a Lot against which a lien is asserted successfully defends a suit to foreclose the lien, such


Owner shall be entitled to an award of costs and attorney fees from the lien claimant, except that no

costs or attorney fees shall be awarded against Grantor or the Architectural Review Committee (or its

members).

N.2.5 Liens created or authorized by this Declaration shall be foreclosed in the same manner as is provided

in the laws of the State of New Mexico for the foreclosure of mortgages on real property. The

redemption period shall be one month in lieu of nine (9) months.

N.2.6 Upon payment by an Owner or other person of an obligation owed by an Owner to another Owner

(including Grantor), the paid Owner shall give the paying Owner (or other person), upon request, a

release of lien in recordable form.

N.2.7 Unless assigned by an Owner in whose favor a lien arises, the lien rights created by this Declaration

shall remain in such Owner, and shall not pass to a purchaser of such Owner’s Lot from such Owner.

N.2.8 Except as otherwise specified in this Declaration, a lien created or authorized by this Declaration shall

be a cumulative remedy and shall not be construed to limit the remedies otherwise available to the

person to whom the lien runs.

N.2.9 Judicial proceedings to foreclose any lien created or authorized by this Declaration may be

commenced without prior resort to binding arbitration. An action to foreclose a lien created or

authorized by this Declaration shall be commenced within 12 months of the date the claim of lien is

recorded.

Arbitration:

N.3.1 Except as expressly set forth in this Declaration, all controversies regarding enforcement or

interpretation of the provisions of this Declaration shall be submitted to binding arbitration as set forth

in the Uniform Arbitration Act, NMSA ' 44-7-1 to 44-7-22 (2000), as it may be amended from time-to-

time (the “Act”). For purposes of this Article, the Declaration shall be construed as a written contract

between the Grantor and all persons who acquire any interest in any Lot, and between and among

such persons, to submit to binding arbitration all controversies regarding the enforcement or

interpretation of the provisions of this Declaration.

N.3.2 The binding arbitration required by this Article shall be conducted by the Las Cruces Better Business

Bureau in accordance with the Better Business Bureau Rules Of Arbitration as are published from

time-to-time by The Council Of Better Business Bureaus, Inc. Should the Las Cruces Better Business

Bureau decline to accept a controversy regarding enforcement or interpretation of the provisions of


this Declaration, then the controversy shall be submitted to binding arbitration under the arbitration

rules of the American Arbitration Association, as such rules may be published by such association

from time-to-time.

N.3.3 Any decision or award rendered by the arbitrators may be confirmed as provided in the Act and shall

be enforceable as provided in the Act.

N.3.4 The prevailing party in any arbitration proceeding, or judicial confirmation or enforcement proceeding

under the Act, shall be entitled to an award of costs and attorney fees, except that, no costs or fees

shall be awarded against Grantor or the Architectural Review Committee or any of its members.

N.3.5 To the extent a provision of this Declaration conflicts with a provision of the Uniform Arbitration Act,

the Better Business Bureau Rules of Arbitration, or the arbitration rules of the American Arbitration

Association, the provisions of this Declaration shall control.

N.3.6 Subject to other provisions in this Declaration, no person shall be entitled to enforce a provision of the

Declaration against a violator thereof, unless a demand for arbitration is made within 18 months after

the violation or alleged violation of the provision (except where this Declaration exempts enforcement

from prior binding arbitration). Should a violation involve the design, specifications, or construction of

an Improvement which design, specifications, or construction does not comply with this Declaration,

such non-compliant Improvement shall be deemed to fully comply with the provisions of this

Declaration if demand for arbitration is not made within 18 months after the date construction of the

Improvement is completed. Provided however, no such nonconforming Improvement shall constitute

grounds, justification, or precedent for any other non-compliance by or variance for any Owner.

Provided further, subject to the provisions of this paragraph, failure of Grantor, the Architectural

Review Committee, or of any grantee taking title to any part of the Subdivision through the Grantor to

enforce any of the provisions of this Declaration shall in no event be deemed a waiver of the right to

do so thereafter as to the same breach, or as to one occurring prior to or subsequent thereto.

ARTICLE O - MISCELLANEOUS PROVISIONS

O.1.1 Subject to any contractual obligation of Grantor to persons with whom it contracts to sell a Lot, until

such time as the first deed to a Lot from Grantor to a buyer has been recorded, Grantor may, by a

recorded instrument, alter, amend, or repeal all or any portion of this Declaration. Thereafter, this

Declaration may be altered, amended, or repealed only by the recordation of a written instrument

signed by the Owners of at least sixty-six and 67/1OOths percent (66.67%) of the Lots in the

Subdivision which specifies the alteration or amendment or repeal. The foregoing sentence does not

apply to the provision in section 3.14 or the provision in section 5.1 concerning appointment or

identification of members of the Architectural Review Committee.


O.1.2 The provisions of this Declaration shall be liberally construed to effectuate their purpose of creating a

uniform plan for the development of the Subdivision and to promote and effectuate the fundamental

concepts of the Subdivision and the purposes of this Declaration as set forth in such Declaration. All

provisions affecting development in the Subdivision shall be construed so as to be in conformance

with the laws of the State of New Mexico. This Declaration shall be construed and governed under the

laws of the State of New Mexico.

O.1.3 The covenants, conditions, and restrictions contained in this Declaration are subordinate and inferior

to the laws and ordinances of the United States of America, the State of New Mexico, Doña Ana

County, the City of Las Cruces, and any other political entity having jurisdiction over the Subdivision

and do not in any way purport to abrogate, alter, amend, or qualify the force and effect of said laws

and ordinances; provided however, if a provision of this Declaration is more restrictive than such laws

and does not violate such laws, the more restrictive provision in this Declaration shall control.

O.1.4 Each of the provisions of this Declaration shall be deemed independent and severable, and the

invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or

enforceability of any other provision.

O.1.5 Unless the context requires a contrary construction, the singular shall include the plural and the plural

the singular; and the masculine, feminine, or neuter shall each include the masculine, feminine, and

neuter.

O.1.6 All captions and titles used in this Declaration are intended solely for convenience or reference and

shall not affect the meaning of that which is set forth in any of the provisions hereof.

O.1.7 Nothing contained in this Declaration shall be construed to limit the right of Grantor or its shareholders

to develop any property adjoining, adjacent to, or in the vicinity of the Subdivision in any manner it

deems or they deem fit. All roads in the Subdivision may be extended by Grantor or its designee to

serve other adjacent subdivisions.

O.1.8 By accepting a deed to a Lot, each Owner consents to any such development and covenants not to

oppose any such development provided that any such development is not in violation of the law. By

accepting a deed to a Lot, each Owner acknowledges that, until a majority of the Lots and other area

in the vicinity of the Subdivision are landscaped, there is a high probability that sand will blow or wash

into or onto such Owner’s Lot from other parts of the Subdivision or elsewhere. Grantor hereby

reserves for its benefit an easement on all Lots for blowing or drifting sand, whether from this

Subdivision or any other property owned by Grantor. All deeds conveying any Lot shall be construed


to include the conveyance with such Lot of an easement appurtenant to such Lot, burdening all other

Lots, for blowing or drifting sand.

The forgoing constitutes the entirety of the permissive and restrictive covenants running with the land, until or

unless modified as provided for herein.

ARTICLE P – DISCLOSURES AND NOTICE

This Article is informational and provided for in this instrument as a supplement advisory, disclosure of fact or

intent and a general notice to all persons or entities interested in the subject Property. Any changes,

modification or elimination of these declarations does not alter the provisions of Articles A through O hereof

and the Grantor is not obligated to provide or amend (in the event of change) these in any way:

• A Disclosure Statement for each development plat is required pursuant to the Dona Ana County

Extraterritorial Subdivision Code. These are recorded with the County Clerk as a stand-alone

instrument. All Owners are advised to procure and understand those Disclosures.

• Some of the land adjacent to and near the Subdivision is owned by the U.S. Government, Bureau of

Land Management. These lands may be sold and/or developed by the Grantors or others. Current

ownership (by the Government) is not a limitation on future land use.

• A future Major Arterial location for Weisner Road has been planned and provided for in the Master

Plan (a north – south road, connecting to Dripping Springs Road) which directly impacts proposed

Phases 4 and 5 of the Development and may indirectly impact other portions of the Property. The

Dona Ana County Metropolitan Planning Organization (MPO) should be contacted about any

concerns or potential construction within this alignment and the partial rights of way committed for

dedication by the Grantor.

• Some lots are designated for equestrian (horse and large animals) keeping and maintenance and

easements for equestrian (horse) traffic are reflected on the Plat(s) for portions of the Development.

The use of those lots and provision for use of these easements (by others) is contained in the

Covenants.

• Some lots are designated for drainage control by easement and the Drainage Report(s) filed with the

Dona Ana Extraterritorial and Public Works Departments. These are reflected on the Plat(s) for

portions of the Development. Lots burdened by these easements and accompanying provision

(drainage within the street rights of way) include an agreement with the County for maintenance. This

agreement includes Lot Owner responsibilities for on-lot ponds (their construction) and joint-

maintenance (drainage, vegetation and any culverts) for the passage and control of natural and


developed storm water runoff as designed.

• Construction of a house pad for vertical elevation is required to be in compliance with the Drainage

Report(s) filed with the Dona Ana Extraterritorial and Public Works Departments and these

Covenants. These are generally a minimum of one foot (1’) above the natural grade at the lowest

corner of the house. Should an alternative location or elevation (grade) be desired, it is the Lot

Owner’s sole responsibility to request any modifications to the approved Plan.

• Moongate Water Company, an independent private water utility, may charge connection fees,

extension fees, meter fees and other charges to each Owner. These charges are independent from

the Grantor and are regulated by the New Mexico Public Service Commission.

• Locating a house more than ninety feet (90’) may be subject to additional connection fees by the

electric utility.

• The Grantor, Organ Mesa Development L.L.C., is a privately held limited liability Corporation, an entity

whose members include licensed contractors and real estate brokers (or agents). Any acts and

activities of these individuals, other than officially and expressly for Organ Mesa Development L.L.C.,

are independent from this Development (including but not limited to Lot and Land Sales, Promotions,

Zoning, Development Plans, Subdivision Plats, Construction activities and their exercise of

Architectural Control Committee responsibilities). No Owner or Owner’s agent shall be aggrieved or

contemplate recourse by virtue of these independent activities of the members of Organ Mesa

Development L.L.C.

• The U.S. Government, Environmental Protection Agency has implemented NEPA Stage 2 of the

federal Clean Water Act. Generally, disturbance of 1 Acre of land or portions thereof may require the

filing of a Notice of Intent (NOI) and Storm Water Pollution Protection Plan (SWPPP). These

requirements should be reviewed and understood by any Owner and their Contractor. A development-

wide SWPPP (pre and post construction) has been prepared by the Developer and is available on

posted boards or upon request.


IN WITNESS WHEREOF, Grantor has executed this Declaration, Annexation and Amendment on the date(s)

indicated in the notary jurats below.

ORGAN MESA DEVELOPMENT RANCH

A New Mexico Limited Liability Corporation

By: ____________________________

Timothy A. Curry, Managing Member

Organ Mesa Ranch, a New Mexico Limited Liability Corporation

STATE OF NEW MEXICO )

) ss

COUNTY OF DOÑA ANA )

The foregoing instrument was acknowledged before me this ______day of ______________, 200__, by

Timothy A. Curry, as Managing Member of Organ Mesa Ranch, a New Mexico Limited Liability Corporation, on

behalf of said corporation.

Date: ____________________________________________

By: ______________________________________________

declaration of restrictive and protective …

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